Thompson v. Davitte

• Decision Date: 31 August 1877
• Citation: 59 Ga. 473
• Parties: L. Q. C. Thompson, next friend, et al., plaintiffs in error. v. Jacob S. Davitte et al., executors, defendants in error.
• Court: Georgia Supreme Court

59 Ga. 473

L. Q. C. Thompson, next friend, et al., plaintiffs in error. v. Jacob S. Davitte et al., executors, defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

[COPYRIGHT MATERIAL OMITTED] Wills. Ceveat. Fraud. Undue influence. Evidence. Witness. Attestation. Opinion. Before Judge Underwood. Polk Superior Court. February Term, 1877.

Sufficiently reported in the opinion.

E.N. Broyles; Warren Akin; Tidwell & Thompson, forplaintiffs in error.

*Wright & Featherston, for defendants.

BLECKLEY, Judge.

The will of John C. Davitte was propounded for probate in solemn form. Some of the heirs at law entered their caveat, the grounds of which were, that the testator was not of sound disposing mind and memory; that he did not execute freely and voluntarily, but from undue influence and persuasion, and from the over-importunity of the principal legatees, and to obtain quiet and repose; that the instrument is not attested by three or more witnesses, but by two only; that it was not attested and subscribed by the witnesses in the presence of the testator; that it was not signed by the testator in the presence of the witnesses, nor acknowledged before them to be his will; that it was made (if at all) under a mistaken supposition by the testator that he had previously advanced to his other children an amount of property equal to that devised to each of his two sons who are, by the will, his principal legatees, his intention having been to give all his children equal shares, and his mistake being caused by his infirmity and the misrepresentation of these two sons; and that his mind was weak and imbecile, and that fraudulent practices were employed by interested persons to induce him to make the will. By appeal, the case passed from the court of ordinary to the superior court. On the trial the jury found in favor of the propounders, and set up the will. The caveators moved for a new trial on many grounds, all of which were overruled. Such of them as were specially insisted upon in this court, will now pass under review. Their number, if not their difficulty, will require sometime and space.

1. The court charged the jury: "The real question for you to decide is this: is the paper propounded and offered in evidence, proven as the law requires to be the will of John C. Davitte, or is it not so proven?" Other parts of the charge were such as that the jury could not have understood *this to mean that there was nothing for decision but the factum of the will—the mere requisites of formal execution. Besides, to prove a contested will as the law requites, is to establish all that is needful to set up the instrument as a real, valid will. We are to presume that the court informed the jury what therequirements of the law to which he referred were, and that the jury had all the light which they needed on that subject.

2. Another part of the charge complained of is: "Where fraud or undue influence is alleged, in the procurement of the will, the burden of proof is upon the caveators to prove such fraud or undue influence." The full charge is not set out in the record. For aught that appears, the court may have previously defined what it took to constitute a prima facie case on the part of the propounders. If that was done, the clause above quoted would then have been appropriate. The Code declares, in section 3759, that: "What amount of evidence will change the onus or burden of proof, is a question to be decided in each case by the sound discretion of the court." Adverting to the brief of evidence contained in the record, we have no doubt that the propounders did prove enough to charge the onus, and that, as the case stood when the charge was delivered, the burden was upon the propounders to make good their allegations. According to what is said by the court in Evans v. Arnold, 52 Ga., 169, the charge in that case was to the effect that after the factum of the will was duly proven, the burden of showing the other requisites ceased as to the pro pounders. That feature is not presented here. How much besides the factum of the will was held requisite, is nowhere made known to us, nor is it said or intimated that nothing further was exacted of the propounders. The truth is, that what the propounders have to carry, on the score of sanity and freedom, is more in the nature of ballast than of cargo. It is just burden enough to sail with—no more.

3. The court charged the jury "that, in order to set aside a will on the ground of fraud or undue influence, such fraud *or undue influence must amount to force or fear, and in effect make it the will not of the testator, but of some other person; and the question is as to the time when the will was executed: was the testator, at the time he executed the will, under the control or fear of another? If he was not, the will ought to stand, even if he had been before or after that time under the fear or influence of another." The evidence disclose no fraud as distinguished from undue influence—no mere trick or deception. If it did, the expressions in this charge as to force might not, and perhaps would not, be appropriate. See 11 Ga., 343. On the extent to which undue influence must go in the destruction of free agency, the positions of the charge are supported by 21 Ib., 552. The meaning is, that there must be mental constraint, moral coercion, the substitution of external for internal agency. 6 Ib., 325. That the influence must be operative at the very time the will is executed, there can be no doubt. 1 Red. on Wills, 516. Though, to ascertain whether it was so or not, the state of things both before and after, may be regarded. Doubtless, the court gave proper instructions as to the right and duty of the jury to look to prior or subsequent time for the purpose of obtaining such light as might be reflected therefrom, under the evidence. The record is simply silent as to what was charged on that subject.

4. The court charged the jury "that if they should find from the evidence that John C. Davitte, at the time he made the will, was of sound mind, and acted freely and voluntarily in doing so, then, any inequality which the will might make among his children would be immaterial, because a person has a right by will to give one child more than another. But if the jury should find that, at the time of making the will, the testator was imbecile from age, or his mind weakened by the use of opiates, or that he was under the influence or fear of another, or any fraudulent practice of another, then, the jury might consider the inequality, if any, made by the will among testator's children, for the purposeof determining the condition of the mind of the *testator at the time of making the will, and whether or not he acted freely in doing so, or acted under any undue influence or fraud practiced on him." The objection to this charge is, that it seems to require undue influence, etc., to be found from other evidence, before the inequality of the will in its dispositions among the testator\'s children could be considered for any purpose. Taking the language literally, it would appear, at first view, to bear such a construction. So construed, the charge would be inaccurate; for the inequality might be, and generally ought to be, a factor in deciding upon the existence of undue influence, etc., and not alone upon whether the testator acted under it in making the will. The jury should not ask themselves whether, without the inequality, there is evidence enough to establish undue influence, etc., but whether there is enough with it. From a close scrutiny of the charge, it will be seen, however, that the court did not, in fact, cut off the jury from considering all the evidence (including the alleged inequality) in arriving at the existence or non existence of undue influence, etc. In the first sentence the jury are told that if they should find from the evidence so and so; and in the second they are told that if they should find so and so. In the latter, it was not thought necessary to repeat "from the evidence;" but that, in all probability, was the meaning. And "the evidence" includes all the evidence. There is no express restriction of the jury to less than the whole. They are left free to consider every fact before them in making out the existence of undue influence, etc., and perhaps other parts of the charge not brought up may have been specific on that subject. The apparent incorrectness of the part before us is not due to what is in it, but to what is not in it; consequently, unless we knew that the court charged nothing more than is here, we cannot pronounce what is here erroneous. Because the court rightfully told the jury that they might consider the inequality of the will for one purpose, we cannot assume thathe meant to tell them, or did tell them, that they could not consider it, together *with the balance of the testimony, for other purposes. The propositions of thecharge are, in themselves, true and correct. It is only by getting them tangled with implications which may have been fully cleared up by the court in other and further instructions, that they admit of question. Let them be read over again in the light of these observations, and they will be seen to be unobjectionable.

5. The court charged the jury, "that it was not an unnatural will which gives one or more children more than others of the children got, but only where the principal portion of the estate is disposed of to strangers, to the exclusion of the wife and children, and the rule that such unnatural wills should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence or unfair dealing, probate should be refused, is not applicable." We think this paragraph of the charge should have been omitted. In a civil case, where the jury are sworn to take the law from the court, there would seem to be no occasion to mention a rule which does not...